Tag: DepartmentofLabor

As we near the end of 2017 and begin planning for 2018, leaders need to be aware of upcoming changes and potential changes in New York State and at the federal level in 2018. The law continues to evolve, which causes greater complexity for organizations throughout the country. Proactive knowledge and planning will help any leader in managing through these significant changes.

Below are 3 upcoming changes in New York State:

Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.

Minimum Wage Increases: Minimum wage will increase on 12/31/17, from $9.70 per hour to $10.40 per hour in the Southern Tier. The rates vary in NYC and Long Island, but they also increase. Watch for wage compression in your salary schedules.

Paid Family Leave: This is a significant change throughout the state and will impact most organizations. Ensure that your organization is prepared for the change on January 1, 2018.

Below are 3 potential changes to watch in 2018:

NY State Call-In Pay Proposal: If passed, this law will be a significant change to the call-in pay, employees wearing a pager and scheduling laws in New York State. This is currently a proposal and has not been finalized yet. More to come in 2018

Medical & Recreational Marijuana: Continue to watch for changing legislation in the state and at the federal level that could impact medical marijuana legislation. These laws continue to evolve at the state level throughout the country.

Salary History Requirements: These laws have changed in certain states and cities throughout the country. We could see more change to these laws, locally and nationally.

Other changes to monitory; ban the box, federal exempt level changes, federal minimum wage, FMLA, healthcare, tax legislation, NLRA changes (significant changes proposed under the new administration) and immigration legislation. Be proactive in your approach to these changes and ask for guidance if you are confused or unclear on expectations. Enjoy a safe & Happy New Year!

On Sunday, November 26, 2017, employers in New York City were required to be compliant with the new employee-scheduling laws. The laws impact “retail” and “fast food” employers throughout the city. These significant changes impact; breaks between shifts, predictable hours and on-call scheduling. These laws do not impact employers in Upstate New York, however, we should be aware of any changes impacting entire industries.

Below is a summary of the 5 legal changes to the NYC fast-food and retail industries:

Voluntary paycheck deductions: This new change allows fast-food employees to designate part of their salary to a non-profit organization. Employer’s must deduct from paychecks and provide the funds to the non-profit organization.

Rest between shifts: This rule establishes time between shifts and bans “clopening” shifts. When an employee works a closing shift one night and opens the next day. The law prohibits these consecutive shifts unless there is an 11-hour break between shifts. However, employees can agree to clopening shifts, but must be paid $100 each time.

Extra hours: Employers must now post additional hours for part-time workers before hiring new workers. The communication must be posted at the worksite and sent electronically. “Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first.”[i]

Predictable scheduling: Requires employers to provide new hires an estimate of their work schedule at the start of their employment. Employers must now communicate to their existing staff their schedules 14-days in advance. “If employees receive schedule changes with less than 14-days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.”[ii]

On-call scheduling: Prohibits certain retail businesses from requiring workers to be on- call. The new law also states that employers cannot cancel, change or add shifts with 72-hours and they must post the schedule 72-hours in advance. There are additional exceptions for workers covered by collective bargaining agreements.

These significant legal changes are a result of the “fight for $15” movement, that we have seen in major cities across the United States. The fight for $15 has a goal of raising minimum wage to $15 per hour and add legal protections for many low-wage earners. If this impacts your organization, ensure you understand your obligations as an employer under the law. Communicate and train supervisors and managers on these changes. These are significant changes to the work relationship and will impact many organizations throughout New York City.

New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state. Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.

Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.

Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.

We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close. Continue to monitor for changes in policy and statewide communications. Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018. Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year. If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures. This is a significant change at the state level, and it will impact most employers and employees in 2018.

As organizational leaders, we have the complex task of managing the workforce, coaching and counseling, disciplining, and at times, discharging employees. Conflict resolution is never easy, but necessary, for the workforce, employee morale and the organization. Avoiding difficult discussions or not addressing employee relations issues, can and will impact the organization. We need to be consistent and fair for all employees, while providing a due process for discipline to potential discharge.

Below are 5 elements of due process:

Expectations and Consequences: Communicating expectations, consequences and performance standards to the employee or workforce is the first step in the process. The write-up should document a performance problem, consequences of not meeting expectations and all metrics associated with the performance problem. Follow-up dates and action items are great to include in the first step.

Consistency: We need to treat all workers with consistent and fair rules. If we discipline one employee for a performance issue, all employees with the same issue should be disciplined. Inconsistent practices can lead to legal issues, employee moral issues, turnover and internal conflict.

The Discipline Must be Appropriate for the Offense: Review the “big picture” prior to making a decision on discipline and probable cause for termination.

Employee Response: The employee should be given the opportunity to respond during any investigation or administration of discipline.

Time to Improve Performance: If your organization is using progressive discipline, we do need to allow the employee time to improve performance. However, certain situations will dictate decisions regarding performance improvement plans and immediate termination. These situations need to be consistent and fair, throughout the organization.

Coaching and counseling, disciplining or terminating an employee is never an easy decision, but one that is necessary for the organization and rest of the workforce to grow and succeed. The definition of due process is an area we should design our policies and procedures around. Remember, as the employer, you have the right to change the policies. We need to ensure we communicate the changes to the workforce. Also, keep in mind Employment-At-Will doctrine, laws and regulations. This can vary, state to state and union versus non-union employers. Seek guidance if you need assistance on coaching, counseling, disciplining or terminating an employee. How we communicate the action/decision can have an impact.

With changing legislation surrounding Form I-9 compliance, organizations need to be proactive, to ensure accurate record keeping on all required documentation. This includes auditing I-9 records every few years, to ensure all information is up-to-date and forms are correctly filled out. The U.S. Department of Homeland Security’s Immigration and Customers Enforcement (ICE) has the legal right to review your organizations I-9 records at will.

Below are 4 considerations for an I-9 compliance audit:

Fill Out All Sections Accurately: The basic information on the I-9 from should be filled out completely and accurately. This includes; dates and names on all forms. “A construction company was recently penalized $228,000 for multiple compliance violations…submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2.”[i] Take the time to review instructions and ensure that the employee has filled out the form properly. If not, correct the issues.

Employee Roster Information Updates: Ensure you have an accurate headcount list of current and past employees, prior to beginning an audit. Remember, employees hired after November 6, 1986 must have an I-9 on file. If an employee is missing an I-9, the organization must obtain one as soon as possible.

I-9 Documentation: “Documentation for former employees is only needed for one year after separation or three years from date of hire (whichever is later), so no need to clutter your files with unnecessary information.”[ii] Ensure that you are obtaining the required documentation from List A or List B and List C.

Necessary Signatures: This is consistent with the requirements mentioned previously. All forms need to be signed by an employer representative and the new hire employee. This includes remote workers. The process isn’t complete until the forms are verified for accuracy and contain the proper information with signatures.

The SHRM article quoted throughout, contains other examples of companies that failed to complete accurately and sign the I-9 forms and the fines for these violations. The form contains directions for both the employer and employee. Work through the steps and ensure that the forms are accurate and up-to-date, to protect the organization from any violations and fines. If you have questions about mistakes or conducting an audit, seek guidance and be open to suggestions. Proactive audits necessary to ensure compliance, as the laws and forms continue to evolve. Remember, using the new I-9 form is required now and has been in effect as of September 18, 2017. The link to the new form and other instructional information is here: Updated Form I-9

Some employment applications ask about criminal convictions for prospective employees, either written or on the online application. Ban the box legislation changes, have made it illegal for employers to ask prospective employees and job applicants certain questions related to criminal convictions (in certain cities and states), until the interview stage or until a conditional offer of employment is made. The rules within the jurisdiction vary, based on location and legislative requirements. Yes, that means more complexity related to posting positions, recruiting and interviewing in certain cities and states. “The trend of states and municipalities enacting these so-called “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.”[i] For the purposes of this article, we will focus on New York and Pennsylvania laws.

Below are 6 ban the box laws in NY and PA:

NY-Buffalo: The law impacts private employers with 15 or more employees/contractors doing business with the city. Banning criminal history questions on the initial job applications.

NY-New York City: The law impacts all employers with four or more employees. No criminal inquiries prior to the conditional job offer.

NY-Rochester: The law impacts all employers with four or more employees and contractors doing business with the city. No criminal history inquiries until after the initial job interview or conditional job offer.

NY-Syracuse: The law impacts city contractors. No criminal history inquiries and background checks until after the conditional job offer.

PA-Philadelphia: The law impacts all employers with at least one employee in the city. No criminal background checks prior to the conditional job offer.

PA-Pittsburgh: The law impacts contractors and vendors doing business with the city. Banning criminal history inquires until the applicant is deemed otherwise qualified for a position.

The laws vary in the way they are written and the legal requirements for the employer in each location. The laws vary throughout the country, based on state or city requirements. Some states have no ban the box requirements, currently. As leaders, we need to understand the laws and know that a recruitment plan, job application and interview/offer process, that works in New York, might not work in California or Minnesota. Laws continue to evolve at both the federal, state and municipal level. These laws impact the questions we can ask and the information we can request before, during and after the job interview. If you have questions regarding Ban the Box legislation, seek for guidance. Changes occur quickly, and impact businesses of all sizes.

Workplace safety rules and regulations continue to evolve at the federal and state level, just as labor and employment laws and regulations have. As I have recently started revising a safety manual for a client, I now have a profound respect for workplace safety professionals. Because laws and regulations do vary at both the federal and state level, we as leaders need to be aware of changes in legislation, that can and will impact our organizations.

Below are 4 tips on complying with state and federal workplace safety standards:

Federal OSH Act: Passed in 1970, “covers most private employers and their workers. However, OSHA allows states to develop their own workplace health and safety plans, as long as those plans are “at least as effective” as the federal program.”[i]

Multi-State Employers: Currently, twenty-one states and Puerto Rico have OSHA-approved plans that cover government employees at the state and local level, as well as private employers. Five other states and the U.S. Virgin Islands currently have plans that cover only state and local government employers.

State Laws: States can have laws more stringent than the federal requirements and/or standards that are not addressed by federal OSHA. This is comparable to HR laws and regulations; minimum wage, paid family leave, exempt/non-exempt status, background checks, etc. Review state and local requirements, as well as OSHA approved state plans.

Compliance: Employers should review the federal requirements to ensure compliance and then review state compliance standards. “”Stay on top of the state plan regulations,” Martin said. “Assuming the state plan has the same regulations as federal OSHA may be a safe bet 80 percent of the time, but the differences can burn you.””[ii]

As we have seen under the current administration, laws and regulations continue to change. This will have an impact on OSHA standards at the federal level. Under the Obama administration, a law was passed that required certain employers to submit workplace injury and illness records through a portal on the OSHA website in July 2017. The Trump administration pushed compliance back to December 1, 2017, to evaluate the rule and requirements. Regardless, the electronic record keeping requirement can still be implemented at a state level, in certain states. Be aware of these changes and recognize the impact they can and will have on your organization. If you have questions, continue to seek guidance.

During the months of October and November, employers annually conduct open enrollment sessions for employees and family members. These informational sessions, communicate upcoming benefit changes, new costs and any other relevant information that will impact the employee or employees family. The open enrollment sessions also provide an opportunity for the employee and/or significant other to ask questions regarding benefits and costs. SHRM published, “6 Simple Ways to Improve Open Enrollment,” in August 2017. Additional information or resource material, will be helpful to us as leaders and to our employees who need the information to make the best decision for themselves and their families, related to benefits.
Below are 5 steps for a successful open enrollment period:

1. Prepare, Prepare, Prepare: Generate and disseminate information prior to open enrollment meetings. This will provide employees with the opportunity to review the information prior to the open enrollment sessions. Ensure that the information is communicated through the proper organizational channels and it is easy to understand. Do not make benefit information over complex or complicated. Develop a frequently asked questions sheet that will provide assistance to employees when thinking about questions and possible solutions. We cannot cover every questions, this format will help generate thought and answers.

2. Focus on the Employees: This step encompasses step #1, in that we need to prepare information for the workforce that is relevant and timely. Knowing your employees will add value to focusing on specific tools and resources for the open enrollment process.

3. Identify Needs: “Review the results of previous years’ open enrollment efforts to make sure the process and the perks remain relevant and useful to workers.” Do you send out a survey asking for feedback from last year’s open enrollment? What are the demographics of the workforce? Do you have metrics associated with benefit usage?

4. All Available Resources: Are we utilizing all the available resources inside and outside of the organization? Is the marketing department to develop material and communications? Are we partnering with brokers, insurance carrier and vendors to provide sufficient resources during the open enrollment process? Are we communicating all information? Remember NYS Paid Family Leave. Be creative. If you were in the employee’s shoes, what resources would add value and engagement throughout the enrollment process? Don’t assume that the carrier will say no, if you never ask, you will not know the answer.

5. Spouses Involvement: Many organizations provide the opportunity for spouses and domestic partners to be involved in the open enrollment process. Meeting times might need to be changed from day to night or weekend sessions. Other options could be webinars or one-on-one meetings. Involving the spouse will generate more questions and continued engagement.

Open enrollment can be a complex and confusing process for any employee. As leadership, we need to be aware of the needs of our workforce and find proactive solutions to manage and communicate these complexities. “Benefits enrollment strategies are always evolving. What worked last year may not be relevant this year. But you can’t go wrong putting employee’s needs first.” If it was you, what questions would you have during open enrollment?

Occasionally, an employee will request access to their personnel file during the employment relationship or after departing from the organization. What are our legal obligations in providing this information to current or former employees? There is currently, “no federal law that requires private employers to provide employees access to their personnel files, but there are many state laws that do grant access.”[i] The answer varies, based on state specific laws and regulations. What does that mean for employers in New York State? Currently there is no law in New York State which permits an employee to examine his or her personnel file. There is currently an amendment in the New York State Senate to provide public and private employees the right to review personnel files, the bill is in Committee and was proposed initially 2013-2014 and is now being proposed again in 2017-2018. However, Pennsylvania allows an employee to inspect certain information from their own personnel files maintained by an employer. Below are websites for New York State, Pennsylvania and the Society of Human Resources Management:

Again, laws vary state by state. If you are a multi-state employer, research the specific laws and regulations and be consistent with employees. Remember to look for (.Gov) or credible website sources, when searching for current state laws and regulations. If you are required to provide access to employees on all or certain personnel file information, ensure you have a policy in place that is fair and consistent to all employees.

Below is a correction to the draft communication letter, when communicating NYSPFL information throughout the organization. Correction underlined as regulation has changed, from $1.65 weekly maximum contribution to $85.56 annually:

The cost of Paid Family Leave benefits is paid for by the employee via payroll deductions. The Company will be deducting a percentage of your average weekly wages (determined by New York State) to fund Paid Family Leave benefits. The deduction rate, which is set by New York State and is the same for everyone, is 0.126% of each employee’s weekly wage with a weekly wage cap of $1,305.92. The maximum contribution is currently $85.56 annually. For example, if the employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for Paid Family Leave would be $1.26 for that week. For employees who make more than the state’s average weekly wage of $1,305.92, the Paid Family Leave deduction will be capped at $1.65 per week (0.126% of $1,305.92). We will be designing and communicating a more detailed Paid Family Leave policy in the future to be effective in 2018. If you have any questions please contact ____.”

In late July, I wrote a brief article regarding “6 Need to Knows About the New York State Paid Family Leave (NYSPF) Legislation” and will more than likely write a few more articles about the legislation as we approach deadlines and implementation in 2018. We are still patiently waiting for final rules and regulations to be issued from the New York State Workers’ Compensation Board, which continue to be communicated slowly. Continue to monitor for any changes that can and will impact your organization. As we approach 2018, we should begin communicating with employees about NYSPFL and the upcoming payroll deductions (if you haven’t started the deductions yet).

Below is a draft communication letter to consider when communicating NYSPFL information throughout the organization, which can also be used as a memo for a bulletin board or intranet/email message:

“Effective January 1, 2018, employees could be eligible for Paid Family Leave, as permitted under the New York Paid Family Leave Benefits Laws and Regulations. After this date, eligible part-time and full-time employees may take Paid Family Leave under certain conditions, including: (1) to care for a family member with a serious health condition, (2) to bond with a child after birth or placement for adoption or foster care within the first 12 months after the birth or placement, or (3) because of any qualifying exigency arising from the fact that an employee’s spouse, domestic partner, child or parent is on active duty (or has been notified of an impending call or order to active duty) in the armed forces of the United States.

Paid Family Leave will phase in over 4 years with a gradually increasing benefit amount and duration, as shown below:

The cost of Paid Family Leave benefits is paid for by the employee via payroll deductions. The Company will be deducting a percentage of your average weekly wages (determined by New York State) to fund Paid Family Leave benefits. The deduction rate, which is set by New York State and is the same for everyone, is 0.126% of each employee’s weekly wage with a weekly wage cap of $1,305.92. The maximum contribution is currently $1.65 each week. For example, if the employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for Paid Family Leave would be $1.26 for that week. For employees who make more than the state’s average weekly wage of $1,305.92, the Paid Family Leave deduction will be capped at $1.65 per week (0.126% of $1,305.92). We will be designing and communicating a more detailed Paid Family Leave policy in the future to be effective in 2018. If you have any questions please contact ____.”

Other considerations for NYSPFL Communication Letter and/or Policy:

Dates for deductions and payroll processing

Concurrent use with Family Medical Leave (remember FMLA varies in coverage)

Concurrent use of vacation and/or other paid time off

Eligibility, job protection and benefits protection regulations

Provider information, certification forms and submission processes

Approval and denial information

Additional organizational considerations for NYSPFL:

FMLA policy updates

Handbook updates

Labor and employment law posters/legal communication

The letter is designed for proactive communications. As laws and regulations evolve, the letter/communication tools will also change. Organizations should consider developing a frequently asked questions list, to assist employees in better understanding NYSPFL laws.